United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
E. Chang, United States District Judge.
Larry Cherry alleges that Defendant Five Brothers Mortgage
Company Services and Securing, Inc. broke into a south-side
Chicago house in which he was living and then boarded it up
with his possessions inside it. Cherry has now sued Five
Brothers on several tort claims. Five Brothers moved to
dismiss, arguing that Cherry had no standing to sue, and that
each of his claims failed to adequately state a claim for
relief. R. 34, Mot. Dismiss. Because the motion to dismiss
relied on facts outside the pleadings, the Court converted
the motion to an early motion for summary judgment, limited
to the issue of whether Cherry has any ownership interest in
the property. R. 37, Minute Order.
reasons explained below, summary judgment is granted on Count
4 (unjust enrichment), Count 6 (tortious interference with
economic opportunity), and Count 7 (conversion) as it relates
to the real property. Count 1 as it applies to
Cherry's Fourth Amendment claim, Count 3 (negligence),
and Count 5 (intentional infliction of emotional distress)
are dismissed with prejudice. Count 1 as to Cherry's
wrongful-eviction claim is dismissed without prejudice to
Cherry re-pleading a common law wrongful-eviction claim.
Finally, Count 2 (trespass) and Cherry's claim of
conversion as to his personal property in Count 7
purposes of this motion, the Court accepts as true the
allegations in the Complaint. Erickson v. Pardus,
551 U.S. 89, 94 (2007). The limited exception is on the
factual issue of whether Cherry owns the house at issue (the
factual question on which the Court has converted this into a
motion for summary judgment). For that issue, Cherry had an
obligation to produce evidence. That means that allegations
in his complaint will be insufficient to establish his
ownership interest in the home. But even on that summary
judgment issue, of course, the Court views the evidence in
the light most favorable to the Cherry. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
2002, a homeowner named Henry Houston mortgaged his property
at 102 West 117th Street in Chicago. R. 35,
Def.'s Exh. A, Houston Mortgage. In January 2013, U.S.
Bank National Association, Houston's mortgagee, began
proceedings to foreclose on that mortgage. R. 35, Def.'s
Exh. B, Foreclosure Compl. U.S. Bank succeeded in
foreclosing, and in May 2015 it purchased the property at a
foreclosure auction. R. 35, Def.'s Exh. C, Rep. of Sale;
R. 35, Def.'s Exh. D, Order Approving Sale. The Order
Approving Sale was recorded at the Cook County Recorder of
Deeds on October 7, 2015. Def.'s Exh. D, Order Approving
Sale at 1.
2017, Houston allegedly and purportedly sold the same
property to Plaintiff Larry Cherry, giving Cherry an option
to buy the property for $7, 000. R. 38, Pl.'s Exh. 1,
Land Contract; see also R. 32, Am. Compl. ¶ 1.
Cherry has not presented any evidence to suggest that he
recorded the transaction with the County. Five Brothers
suggests that the contract is fraudulent. R. 40, Def.'s
Reply at 2 (“Henry Houston's signature on the
document looks dramatically different from the signature of
Henry Houston on the copy of the mortgage.”). In any
case, Cherry asserts that he “paid [Houston]
substantial terms of money in cash and put substantial
improvements into the property believing that the contract
was valid.” R. 38, Pl.'s Resp. ¶ 8. Cherry
alleges that he had paid for over $20, 000 in repairs on the
property, and $30, 000 “worth of improvements and
services.” Am. Compl. ¶¶ 6, 27. He also
alleges that he had “over $35, 000 worth of furniture,
equipment, and supplies” stored in it. Id.
came home one day to find workers from Five Brothers inside
the house “installing steel doors and window
covers.” Am. Compl. ¶¶ 2, 7. He called the
Chicago Police Department, but after the police officers
arrived and spoke with Five Brothers employees, they let Five
Brothers continue working. Id. ¶¶ 8-11.
According to Cherry, workers showed the officers some
documents that they refused to show Cherry. Id.
¶ 9. Cherry then made a telephone call to Five Brothers,
and one of its representatives told him that Five Brothers
had been authorized to board up the property by U.S. Bank.
Id. ¶¶ 12-13. Finally, Cherry called U.S.
Bank, who allegedly told him that “the subject property
was not in their inventory.” Id. ¶¶
14-15. Five Brothers refused to show Cherry any paperwork
that they had received from U.S. Bank. Id.
¶¶ 9, 16-17.
Motion to Dismiss
Federal Rule of Civil Procedure 8(a)(2), a complaint
generally need only include “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). This short and plain
statement must “give the defendant fair notice of what
the … claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (alteration in original) cleaned
The Seventh Circuit has explained that this rule
“reflects a liberal notice pleading regime, which is
intended to ‘focus litigation on the merits of a
claim' rather than on technicalities that might keep
plaintiffs out of court.” Brooks v. Ross, 578
F.3d 574, 580 (7th Cir. 2009) (quoting Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 514 (2002)).
motion under Rule 12(b)(6) challenges the sufficiency of the
complaint to state a claim upon which relief may be
granted.” Hallinan v. Fraternal Order of Police of
Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009).
“[A] complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). These allegations
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
The allegations that are entitled to the assumption of truth
are those that are factual, rather than mere legal
conclusions. Iqbal, 556 U.S. at 678-79.
Motion for Summary Judgment
described earlier, the Court has converted Five Brothers'
motion into an early summary judgment motion on the factual
issue of Cherry's ownership or legal interest in the
property. Summary judgment must be granted “if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A genuine issue of
material fact exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). In evaluating summary judgment motions,
courts must “view the facts and draw reasonable
inferences in the light most favorable to the”
non-moving party. Scott v. Harris, 550 U.S. 372, 378
(2007) (cleaned up). The Court “may not weigh
conflicting evidence or make credibility determinations,
” Omnicare, Inc. v. UnitedHealth Grp., Inc.,
629 F.3d 697, 704 (7th Cir. 2011) (cleaned up), and must
consider only evidence that can “be presented in a form
that would be admissible in evidence.” Fed.R.Civ.P.
56(c)(2). The party seeking summary judgment has the initial
burden of showing that there is no genuine dispute and that
they are entitled to judgment as a matter of law.
Carmichael v. Vill. of Palatine, 605 F.3d 451, 460
(7th Cir. 2010); see also Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986); Wheeler v. Lawson, 539
F.3d 629, 634 (7th Cir. 2008). If this burden is met, the
adverse party must then “set forth specific facts
showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 256.
Brothers first argues that the Complaint should be dismissed
because Cherry does not have standing to bring the claims. R.
35, Def.'s Br. at 2-3. Five Brothers' theory is that
Cherry cannot establish an injury-in-fact because he did not
own the property from which he alleges he was wrongfully
evicted. Id.; see Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560-61 (1992) (setting out the
elements of Article III standing, including “an injury
in fact, … a causal connection between the injury and
the conduct complained of, … and [a likelihood] that
the injury will be redressed by a favorable decision.”)
(cleaned up). As previewed above, the Court converted the
motion to dismiss to summary judgment motion on the limited
issue of whether Cherry had a valid ownership interest in the
property. R. 37, Minute Order.
on the record evidence, it is clear that there is no dispute
of material fact on the ownership of the property. U.S. Bank
National Association began foreclosure proceedings on Henry
Houston's mortgage in January 2013. See
Def.'s Exh. B, Foreclosure Compl. U.S. Bank then
purchased the property at auction in 2015. See
Def.'s Exh. C, Rep. of Sale; Def.'s Exh. D, Order
Approving Sale at 2. Cherry, on the other hand, has a
contract allegedly signed by Houston that purports to
transfer him the property as of August 2017. Pl.'s Exh.
1, Land Contract. Five Brothers maintains that the contract
is fraudulent. Def.'s Reply at 2 (“Henry
Houston's signature on the document looks dramatically
different from the signature of Henry Houston on the copy of
the mortgage.”). It could be. But the Court need not
decide that issue (and, on summary judgment, might not have
been able to). Even if Cherry and Houston did both
sign the contract, and Cherry entered into it in good faith,
even he now admits that he was duped. Pl.'s
Resp. at 2 (“Plaintiff Cherry appears to have been a
victim of property fraud.”). Houston did not have any
authority to lease or to sell the property in August 2017-he